15 July 2014 | Comment | Article by Lianne Jones TEP
Lianne looks at the nation's love affair with animals and the considerations people give to their pets when making wills.
The recent case of King v Dubrey and others 2014 EWHC 2083 (Ch), as reported by BBC News online, got me thinking about the nation of animal lovers that we are.
As that judgment has now been delivered, it is worth mentioning that, as we suspected, the claimant, Mr Kenneth King, brought a claim seeking to assert that the gift of June Fairbrother's house was a gift in contemplation of death (also known as a donatio mortis causa) and, in addition, sought to bring a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.
Seven of the beneficiaries to the will of Mrs Fairbrother were animal charities who disputed claims by Mr King that he had been given or promised Mrs Fairbrother’s house during her lifetime (in order that he could care for her pet cats and dogs at the property).
Intrigued by this story and with a good idea that as a nation we are seemingly mad about our pets, I decided to run a quick poll around the office. Asking my colleagues in Will Writing for their favourite wills and pet legacies certainly confirmed my hunch that we (well, certainly some) are mad about our pets. Here are a few of my personal favourites from the poll to give you an idea of the requests that we get:
- a husband who should only be allowed to remain in the family home after his wife's days only for as long as their cat, “Whiskers”, was living;
- a gentleman who would like his executors and trustees to set aside money to look after his dog “Fido”, keeping him in the manner to which he had become accustomed and feeding him fresh chicken and beef for the rest of his days; and
- a couple who would like their pets be put to sleep and cremated and their ashes to be mixed with their own and scattered together.
The above are our more extreme examples, but concerns as to what will happen to somebody’s pets after their days can often require more complex advice and will drafting than one might think.
There are a couple of key problems posed where somebody wishes to leave a gift to their pet. A dog, a cat or a pet elephant for that matter are unable to provide a valid receipt in the same way as a minor beneficiary would be unable to accept the monies from the executors whilst under the age of 18. A pet also obviously lacks the ability to deal with their own finances.
Trusts setting aside monies to be looked after by the trustees to be used for the benefit of pets are also shaky ground. With no beneficiary living being capable of enforcing the trust they are known as trusts of imperfect obligation. Whilst the courts have long acknowledged that trusts for animals can fall into an exclusive group of anomalies for this purpose, drafting a will or trust with reliance upon it falling into these anomalies is unwise.
When preparing your will it is therefore very sensible to discuss your wishes fully with the person drafting your will and to ascertain how your wishes can best be achieved. For example, you might trust a friend or family member to receive the beloved pet along with a monetary sum and see through your wishes albeit in the knowledge that your wishes are not binding upon them.
In Will Writing we have acknowledged an increase in requests for bespoke clauses relating to family pets. When we encounter such requests, we advise that there are some sensible considerations when preparing your will to provide for your pet:
- Who is willing to take them on and have you discussed and agreed the matter with them?
- Should they receive a gift for agreeing to take them on?
- Should any clause we write include only your present pets or any future pets?
- If there is not a family member or friend willing and able to look after your pets, do you have other wishes for them? For example, placement with a particular charity for rehoming?